Fordham Intellectual Property, Media and Entertainment Law Journal Volume 20 Volume XX Number 2 Volume XX Book 2 Article 4 2009 The RIAA’s Troubling Solution to File- Sharing Genan Zilkha J.D. Candidate, Fordham University School of Law, 2010 Follow this and additional works at: https://ir.lawnet.fordham.edu/iplj Part of the Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law Commons Recommended Citation Genan Zilkha, The RIAA’s Troubling Solution to File- Sharing , 20 Fordham Intell. Prop. Media & Ent. L.J. 667 (2009). Available at: https://ir.lawnet.fordham.edu/iplj/vol20/iss2/4 This Note is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Intellectual Property, Media and Entertainment Law Journal by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. The RIAA’s Troubling Solution to File- Sharing Cover Page Footnote I would like to thank my advisor, Professor Willajean McLean, for her patience, guidance and support, and Professor Sonia Katyal for her insight. I would also like to thank my family for their constant encouragement. This note is available in Fordham Intellectual Property, Media and Entertainment Law Journal: https://ir.lawnet.fordham.edu/iplj/vol20/iss2/4 C05_ZILKHA_3-8-10_FINAL (DO NOT DELETE) 3/31/2010 1:09 PM The RIAA’s Troubling Solution to File- Sharing Genan Zilkha INTRODUCTION ............................................................................. 668 I. A HISTORY OF FILE-SHARING ................................................. 669 A. The Internet as a Peer-to-Peer File-Sharing Network ......................................................................... 669 B. A History of RIAA Litigation ........................................ 676 C. The DMCA as a Tool in RIAA Litigation ...................... 681 D. RIAA v. Tenenbaum ...................................................... 685 E. The End of RIAA Litigation .......................................... 688 II. PROBLEMS WITH THE RIAA’S ATTEMPT TO STOP FILE- SHARING THROUGH THE GRADUATED RESPONSE PLAN ......... 689 A. The RIAA’s Graduated Response Plan Threatens Citizens’ Rights ............................................................. 691 1. Internet as a Liberty ............................................... 691 2. The RIAA’s Method of Finding File-Sharers Is Faulty and Lacks Accountability, Making It an Untrustworthy Method of Depriving Users of Their Rights ........................................................... 696 B. Graduated Response Plan’s Public Policy Problems ... 698 1. Graduated Response Plans Abroad: Mixed Success and Criticism ............................................ 698 2. Mixed Reception for Graduated Response Plans by Large U.S. ISPs ................................................ 700 A PDF version of this Note is available online at http://iplj.net/blog/archives/ volumexx/book2. Visit http://iplj.net/blog/archives for access to the IPLJ archive. J.D. Candidate, Fordham University School of Law, 2010; B.A., Brown University, 2003. I would like to thank my advisor, Professor Willajean McLean, for her patience, guidance and support, and Professor Sonia Katyal for her insight. I would also like to thank my family for their constant encouragement. 667 C05_ZILKHA_3-8-10_FINAL (DO NOT DELETE) 3/31/2010 1:09 PM 668 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. 20:667 3. The Graduated Response Plan’s Detrimental Impact on Small ISPs ............................................ 704 III. MUTUALLY BENEFICIAL ALTERNATIVES TO THE GRADUATED RESPONSE PLAN ...................................................................... 706 CONCLUSION ................................................................................. 712 INTRODUCTION In June 2009, a federal district court in Minnesota found single mother Jammie Thomas-Rasset liable for $1.92 million.1 The jury awarded approximately $80,000 per song for 24 songs she downloaded in 2005.2 “Shaken” by a verdict that she could not pay,3 she retorted that collecting on the judgment would be “[l]ike squeezing blood from a turnip.”4 Although the district court “remit[ted] the damages award to $ 2,250 per song” in January of 2010,5 Thomas-Rassett nonetheless still faces a “reduced award” in the amount of $54,000, that is, in the court’s own words, “significant and harsh.”6 The Rasset-Thomas case was the first 1 Nate Anderson, Thomas Verdict: Willful Infringement, $1.92 Million Penalty, ARS TECHNICA, June 18, 2009, http://arstechnica.com/tech-policy/news/2009/06/jammie- thomas-retrial-verdict.ars [hereinafter Anderson, Thomas Verdict]; David Kravets, Jury in RIAA Trial Slaps $2 Million Fine on Jammie Thomas, WIRED, June 18, 2009, http://www.wired.com/threatlevel/2009/06/riaa-jury-slaps-2-million-fine-on-jammie- thomas. 2 Anderson, Thomas Verdict, supra note 1; see also Mike Harvey, Single-Mother Digital Pirate Jammie Thomas-Rasset Must Pay $80,000 per Song, TIMES ONLINE, June 19, 2009, http://technology.timesonline.co.uk/tol/news/tech_and_web/article6534542 .ece. 3 Anderson, Thomas Verdict, supra note 1. 4 Id.; see also Nate Anderson, What’s Next for Jammie Thomas-Rasset, ARS TECHNICA, June 21, 2009, http://arstechnica.com/tech-policy/news/2009/06/whats-next- for-jammie-thomas-rasset.ars. 5 Capitol Records Inc. v. Thomas-Rasset, No. 06-1497 (MJD/RLE), 2010 U.S. Dist. LEXIS 504, at *1 (D. Minn. Jan. 22, 2010). 6 Id. at *2. The court emphasized that It is a higher award than the Court might have chosen to impose in its sole discretion, but the decision was not entrusted to this Court. It was the jury’s province to determine the award of statutory damages and this Court has merely reduced that award to the maximum amount that is no longer monstrous and shocking. C05_ZILKHA_3-8-10_FINAL (DO NOT DELETE) 3/31/2010 1:09 PM 2010] THE RIAA’S TROUBLING SOLUTION TO FILE-SHARING 669 major victory against individual file-sharers for the Recording Industry Association of America (“RIAA”), which has been trying to stop file-sharing for the past ten years.7 Since 1999, when high- speed Internet became common, illegal peer-to-peer file-sharing has been costly for the RIAA.8 While the RIAA has attempted to stop peer-to-peer file-sharing through litigation and reeducation plans,9 most of its efforts have not decreased file-sharing and instead have damaged its reputation. The RIAA’s new tactic to stop file-sharing, a “graduated response” plan, raises due process and policy problems and does not guarantee a definite solution. Part I of this Note will discuss the history of peer-to-peer file- sharing and RIAA litigation until the RIAA’s recent announcement that it will stop suing file-sharers. Part I will also outline and explain the RIAA’s new graduated response plan to combat file- sharing without litigation. Part II of this Note will analyze the due process and public policy problems behind the RIAA’s new plan to use a graduated response method to stop file-sharing. Finally, Part III will present a solution to these problems and discuss the reasons why this proposed solution will be better for the RIAA and for music fans. I. A HISTORY OF FILE-SHARING A. The Internet as a Peer-to-Peer File-Sharing Network The Internet began as a series of peer-to-peer, or “P2P” networks,10 which allows users to share files between computers Id. at *2–3. 7 See infra Part I.B. 8 See infra Part I.B. 9 See infra notes 135–36 and accompanying text. 10 Nelson Minar & Marc Hedlund, Peer-to-Peer Models Through the History of the Internet, in PEER-TO-PEER: HARNESSING THE POWER OF DISRUPTIVE TECHNOLOGIES 3, 4 (Andy Oram ed., 2001), available at http://oreilly.com/catalog/peertopeer/chapter/ch01. html#footnote-1. The Internet currently exists as a client/server network, where a client connects to a server to download data. Id. This client/server network is efficient because it prevents the client from having to have a constant connection to the Internet, but instead just requires a connection to a server that is in turn connected to the Internet. Id. In other words, as a client/server network, unlike a P2P network, “[the computer] just needs to know how to ask a question and listen for a response.” Id.; see also How Does C05_ZILKHA_3-8-10_FINAL (DO NOT DELETE) 3/31/2010 1:09 PM 670 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. 20:667 without a centralized server.11 The early Internet, known as the Advanced Research Projects Agency Network of the U.S. Department of Defense (“ARPANET”),12 was similar to a P2P network and was established as a means of connecting different servers “as equal computing peers.”13 When the Internet left the domain of the Department of Defense, it still maintained some P2P aspects. For example, Internet newsgroups, known collectively as Usenet,14 allowed computers to interact and exchange information directly through the Usenet network,15 which is completely decentralized.16 Although initially used primarily to exchange messages between users, Usenet has been utilized as a P2P system for sharing copyrighted works like song files and book manuscripts.17 P2P systems can also be found in one of the most basic web usages, the Domain Name Systems (“DNS”),18 which translate numerical IP addresses into domain names, and which are essential for easy navigation of the Internet.19 P2P systems, however, are best known as a means of illegally sharing copyrighted work.20 Napster was the first company to popularize illegal file-sharing, but Napster was not the first tool for illegally downloading music.21 Music was available for download on websites as early as 1994,22 although finding the desired music was often difficult. Thus, music downloading was limited “to college students with access to fast pipes and techno geeks the Web Work?, http://bid.ankara.edu.tr/yardim/www/guide/guide.10.html (last visited Apr. 21, 2009) (explaining how the client/server relationship works). 11 Minar & Hedlund, supra note 10, at 4–5. 12 Michael Hauben, History of ARPANET: Behind the Net—The Untold History of the ARPANET, or—The “Open” History of the ARPANET/Internet, http://www.dei.